ANDERSON v JACQUETH
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No. 52-487 I1J THE SUPREP4E COURT O THE STATE O M N A A F F O T N 1983 T R I C I A ATJDERSON, P l a i n t i f f and A p p e l l a n t , -vsSCOTT JACQUETH, D e f e n d a n t a n d Respondent. APPEAL FROM: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f L i n c o l n , The H o n o r a b l e R o b e r t M. H o l t e r , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: Douglas J. Wold; C h r i s t i a n , McCurdy & Wold, P o l s o n , P4ontana F o r Respondent : Gary C h r i s t i a n s e n ; Warden, B e r g , R a l i s p e l l , Montana C h r i s t i a n s e n , Johnson S u b m i t t e d on B r i e f s : Decided: Filed: SEP 8 - 1983 Clerk July 21, s p - 8 1983 & 1983 Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e Court. is This an appeal defendant/respondent from a jury t h e Opinion of verdict suit for the i n a negligence a c t i o n entered i n t h e N i n e t e e n t h J u d i c i a l D i s t r i c t , L i n c o l n County. brought for injuries sustained at a The a p p e l l a n t "kegger" party. Appellant claimed respondent n e g l i g e n t l y t o s s e d a l a r g e rock t h a t s t r u c k a p p e l l a n t and c a u s e d s u b s t a n t i a l h e a d i n j u r i e s . The jury returned a verdict for defendant and plaintiff Tricia Anderson, appeals. On March 21, 1980, the appellant, a t t e n d e d a d i n n e r " t a c o " p a r t y w i t h some f r i e n d s i n L i b b y , Montana. Anderson, Ms. s e n i o r and had at time, the with some f r i e n d s and beer in Later a high school l i t t l e o r no d r i n k i n g e x p e r i e n c e . p a r t y s h e consumed a c o u p l e o f b e e r s . the was car that night and At She l e f t t h e p a r t y t h e y d r o v e around Libby. some o f the they drove t o a the occupants "kegger" They h a d consumed it. l o c a t e d on t h e K o o t e n a i R i v e r a p p r o x i m a t e l y two t o t h r e e m i l e s d o w n s t r e a m from the Kootenai Dam. Both high school and college s t u d e n t s a t t e n d e d t h i s p a r t y t o consume b e e r and s o c i a l i z e . At Amy a p p r o x i m a t e l y 11:30 (Wilson) Gilden, p.m. to r e l i e v e bladder pressures, The k e g g e r Anderson j o i n e d Ms. go down to the river a friend, so as to b r o u g h t on by b e e r c o n s u m p t i o n . s i t e i n c l u d e d a l a r g e f i r e where p e o p l e stood around and a t r a i l t h a t d e s c e n d e d a p p r o x i m a t e l y f i f t e e n t o t w e n t y f e e t down t o t h e r i v e r b e d . the party, Both M s . the flowed The r i v e r , a t t h e t i m e o f l o w t h e r e b y l e a v i n g many r o c k s e x p o s e d . A n d e r s o n and h e r f r i e n d f e l l down a s t h e y f o l l o w e d t r a i l down t o t h e r i v e r . Ms. Anderson t e s t i f i e d s h e cannot remember anything pertaining to the incident following that point. The girls then walked riverbed. out on the rocks of the Ms. Gilden then heard moaning and discovered Ms. Anderson bleeding from a head injury. never saw how the injury occurred. assistance for Ms. Anderson. She testified she Ms. Gilden then sought Some males at the "kegger" carried Ms. Anderson up from the river and transported her to the hospital where she received medical attention for a fractured skull and teeth injuries in Libby. Approximately five minutes or less before Ms. Gilden informed the parties of Ms. Anderson's condition and sought assistance, Scott Jaqueth, the respondent, admitted he threw a fifteen to twenty pound rock in the general direction of the river. rocks. He claimed he heard it crash against other He asserted that the rock traveled at an angle different from the direction of the appellant. The next day two of Ms. Anderson's friends returned to the site of the injury. cone-shaped rock. They found blood on a large They also saw, about five feet from that rock, tracks that indicated a small rock had been rolled or kicked. At trial, appellant argued that she was hit by the rock respondent threw. Respondent countered by asserting appellant suffered her injury by falling on the rock found with blood on it. Appellants sole issue on appeal is whether there was sufficient evidence to support the verdict? In reviewing the "review the evidence prevailing party. sufficiency of in a light most the evidence we, favorable to the We will reverse only where there is a lack of substantial evidence to support the verdict." Gunnels v. (1981), Hoyt , Mont. 633 P.2d 1187, 1191, 38 St. Rep. 1492, 1495; Groundwater v. Wright (1979), 180 Mont. 27, 588 P.2d 1003; In Matter of Estate of Holm w ., (1979),,179 Mont. 375, 588 P.2d "Evidence may be inherently weak and still be deemed substantial, and substantial other evidence." evidence Gunnels v. may conflict with Hoyt, supra; In Matter of Estate of Holm, supra. "If there is conflicting evidence in the record, the credibility and weight given to such conflicting evidence is the province of the jury and not this court." Gunnels v. Hoyt, supra; Holm, supra; In Re Carrol's Estate (1921), 59 Mont. 403, 196 P. 996. The appellant asserts the medical evidence indicates only one cause of the injury. Dr. Rice (appellant's attending physician) testified that appellant "was struck on the head by a large solid object." Hospital record introduced indicated the appellant either "fell over" or "was struck by a very large rock." From such testimony and evidence the jury could reasonably accept the respondent's explanation for the injury as resulting from a fall. Appellant questions evidence that respondent presented in support of his theory that appellant sustained injuries from a fall. somewhat While contrary, the evidence it didn't explanation impossible. at the render the time appeared respondent's In reviewing the evidence in a light most favorable to the respondent, we find substantial evidence for the jury to reach their verdict. Here we find that the appellant could have fallen on the rock due to intoxication, slippery rocks, darkness, or stumbling over a small rock. Although the respondent's hands and knees lacked bruises or grit on them, that does not render it impossible to have fallen. Clearly, appellant could have fallen with her hands in her pockets or could have been sufficiently intoxicated to impare her use of her hands in a fall. Appellant argues that a verdict cannot be based on speculation and conjecture. (1969), 153 Mont. 199, Hurley v. N. P. Railroad Co. 455 P.2d 321. It is as much speculation and conjecture to believe the appellant's story as the respondent's story. Respondent introduced evidence that the wound contained sand and grit, blood was found on a large rock and no other rocks, a small rock near the large rock had been moved in a manner indicating it could have been tripped over. While no absolutely conclusive evidence exists to establish the exact cause of the injury, nothing in the evidence rendered either explanation impossible. This was a question of fact for the jury to decide. "Questions of fact are for the jury to resolve and should not be taken from the jury when reasonable men might draw different conclusions from the evidence. (citations omitted) This Court will not disturb the jury's determination if the evidence furnishes reasonable grounds for different conclusions." Gunnels v. Hoyt, 633 P.2d at 1192, 38 St.Rep. at 1496, 1497. ... We find substantial evidence to support the jury's verdict when the record is viewed in light most favorable to the respondent. Court. We affirm the judgment of the District We concur: C h i s Justice
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